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noting parties' agreement "that the sole federal remedy for challenging the loss of good-time credits and similar duration-of-confinement claims is by a petition for habeas corpus"
Summary of this case from Morton v. BolyardOpinion
Civil Action No. 04-0636 (RMC).
March 8, 2005
MEMORANDUM OPINION
Plaintiff, a federal prisoner, complains that the United States Department of Justice, Bureau of Prisons ("BOP"), has failed to search adequately for records that he requested under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 et seq., and that the BOP unjustly denied him good time credits for an incident (related to the FOIA request) for which he was placed on administrative detention. Mr. Barfield is proceeding pro se. What started as a FOIA case has spawned numerous motions, as detailed below. After full consideration of the parties' excellent briefs, the Court will grant Defendant's motion for summary judgment on counts one and two arising under FOIA; grant Plaintiff's motion to amend the complaint and add Warden Lamanna as a defendant; grant Plaintiff's motion to convert counts three through nine to habeas counts under 28 U.S.C. § 2241; grant Defendant's motion to transfer counts three through nine to the District Court in South Carolina, which has jurisdiction over them; and grant Defendant's motion for summary judgment on count ten. Plaintiff's Motion to Expedite will be denied as moot. Defendant's Motion for Time will be granted nunc pro tunc to the original due date of Defendant's Reply. Plaintiff's unopposed Motion to File a Sur-Reply will be granted. Plaintiff's Motion to Strike and Motion for Oral Hearing will be denied.
Pending before the Court are Defendant's Motion to Dismiss Counts Three Through Ten or, In the Alternative, To Transfer to the District of South Carolina and Motion to Dismiss or, In the Alternative, for Summary Judgment on Counts One and Two, Etc. ("Def.'s Mem.") [Dkt. # 13]; Plaintiff's Motion To Add or Substitute Warden John J. Lamanna as Respondent on Counts Three Through Nine ("Pl.'s Mot. to Add") [Dkt. # 14]; Plaintiff's Motion to Convert Counts Three Through Nine to Habeas Claims Brought Under 28 U.S.C. § 2241 ("Pl.'s Mot. to Convert") [Dkt. #15]; Plaintiff's Motion to Expedite Ruling on Defendant's Motion to Transfer Counts Three Through Nine to South Carolina ("Pl.'s Mot. to Expedite") [Dkt. #17]; Defendant's Motion for an Enlargement of Time to File Reply Memorandum Oppositions to Plaintiff's Motions to Add/Substitute the Warden and to Convert Counts Three Through Nine to Habeas Claims (Def.'s Mot. for Time") [Dkt. # 19]; Plaintiff's Motion for Leave to File a Sur-Reply in Opposition to Defendant's Reply Memorandum in Support of Motion to Dismiss Counts Three Through Ten or, Transfer, Etc. ("Pl.'s Mot. to File Sur-Reply") [Dkt. # 27]; Plaintiff's Motion to Strike Declaration of Roy Lathrop ("Pl.'s Mot. to Strike") [Dkt. # 28]; and Plaintiff's Motion for Oral Hearing ("Pl.'s Mot. for Hearing") [Dkt. # 29]. (The last pleading is represented by a proposed order setting an oral hearing.) Except for Plaintiff's Motion to File a Sur-reply, these motions are all contested, have been fully briefed, and are now ripe for resolution. Given this amount of work by the parties, the Court feels compelled to decide those motions over which it has jurisdiction and not transfer them to South Carolina.
Plaintiff appears to be quite conversant with both law and procedure affecting his case.
I. BACKGROUND FACTS
Plaintiff is federal inmate Michael Barfield, who was sentenced to serve 86 months on October 25, 1999. He is currently in the custody of the BOP at the Federal Correction Institution in Edgefield, South Carolina ("FCI Edgefield"). Mr. Barfield was previously jailed at the Federal Correctional Institution in Marianna, Florida ("FCI Marianna"). While at FCI Marianna, Mr. Barfield was subject to discipline, for which he lost 27 days of good-conduct time. He appealed the disciplinary action and was transferred to FCI Edgefield before the appeal was resolved. See Am. Compl. ¶¶ 12-17. Mr. Barfield asserts that an administrative error was found in his initial disciplinary hearing report that required that the entire report be amended. Am. Compl. ¶ 18. In counts one and two of the Amended Complaint, he seeks handwritten notes and e-mails made by prison staff regarding these errors. In counts three through nine, he seeks costs and declaratory judgments concerning his good-time credits. In count ten, he alleges a constitutional violation of his rights because of a BOP rule imposing page limitations on an inmate's complaints about prison conditions.
Mr. Barfield alleges that he was served with a new incident report concerning his prison discipline on August 19, 2003, after his transfer to FCI Edgefield. Am. Compl. ¶ 29. He asserts that a handwritten document was attached to the new report, signed by a Disciplinary Hearing Officer ("DHO") at FCI Edgefield, which stated:
Lt. and Unit Team:
This will be an exercise on paper only. We are simply going through the process. [Inmate] has already been sanctioned at his previous institution. Rehearing was granted during administrative appeal. No additional sanctions can be imposed.
Slater
Am. Compl. ¶ 28.
On September 4, 2003, Mr. Barfield sent a FOIA request to the BOP seeking copies of (1) the handwritten note authored by DHO Slater; (2) written instructions, including e-mails, accompanying the remand of the initial incident report; and (3) written communications, including e-mails, from DHO Slater to FCI Edgefield regarding the remand of the incident report. Am. Compl., Ex. J. On October 14, 2003, the BOP identified 14 pages of documents that were responsive to this FOIA request. Five pages were released in their entirety, seven pages were partially withheld, and two pages were withheld in their entirety. See Am. Compl., Ex. K.
Mr. Barfield appealed the BOP decision on his FOIA request to the Office of Information and Privacy ("OIP") within the Department of Justice. He complained about the adequacy of the BOP's search for responsive documents, particularly with regard to the handwritten note from DHO Slater and e-mails between Ms. Slater and staff elsewhere. Am. Compl., Ex. M. On March 11, 2004, Co-Director Richard L. Huff of the OIP responded to the appeal, stating, "I have decided to remand your request to the BOP for a further search for responsive records." Am. Compl., Ex. O. In his opposition to Defendant's motion to dismiss, Mr. Barfield alleged that no such further search was ever conducted. With its reply brief, the BOP included a Declaration of Roy M. Lathrop, a Paralegal Specialist at FCI Edgefield with responsibility for FOIA requests. Mr. Lathrop states that he searched the BOP Central File maintained on Mr. Barfield on November 9, 2004, and, on November 16, 2004, he contacted the BOP Southeast Regional Discipline Hearing Administrator and the DHO at FCI Edgefield regarding the existence of any e-mails concerning Mr. Barfield's discipline, and none was located. Def. Reply, Ex. 1.
II. STANDARD OF REVIEW
A. Motion to Transfer
A federal court will dismiss or transfer a case if venue is improper or inconvenient in the plaintiff's chosen forum. FED.R.CIV.P. 12(b)(3); Darby v. U.S. Dep't of Energy, 231 F. Supp.2d 274, 276 (D.D.C. 2002); see also 28 U.S.C. § 1406(a) ("The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought."). Whether dismissal or transfer of venue is appropriate rests in the sound discretion of the district court. Davis v. American Society of Civil Engineers, 290 F. Supp. 2d 116, 120 (D.D.C. 2003). "The interest of justice, however, generally requires transferring such cases to the appropriate judicial district rather than dismissing them." Id. (citations omitted).
B. Summary Judgment
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate when the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). In determining whether there is a disputed issue of material fact, the Court must view the underlying facts and draw all reasonable inferences in favor of the non-moving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio, 475 U.S. 574, 587 (1986); Washington Post Co. v. U.S. Dep't of Health and Human Services, 865 F.2d 320, 325 (D.C. Cir. 1989). The Court's threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson, 477 U.S. at 250. Once the moving party shows that there is a lack of evidence to support the opponent's case, the burden shifts to the non-movant to demonstrate, through affidavits or otherwise, the existence of a material issue for trial. See Kingman Park Civic Ass'n v. Williams, 348 F.3d 1033, 1041 (D.C. Cir. 2003); Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987). Conclusory allegations by the non-movant are insufficient to withstand summary judgment. See Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999); Banks v. Chesapeake and Potomac Tel. Co., 802 F.2d 1416, 1430 n. 24 (D.C. Cir. 1986).
With regard to FOIA cases, summary judgment is appropriate where the defendant agency "demonstrate[s] beyond material doubt that its search was reasonably calculated to uncover all relevant documents." Wilbur v. CIA, 355 F.3d 675, 678 (D.C. Cir. 2004) (citation omitted). The agency must prove that each document at issue was produced, was not withheld, is unidentifiable, or is exempt from disclosure. Weisberg v. United States Dep't of Justice, 627 F.2d 365, 368 (D.C. Cir. 1980). To meet this burden, the defendant may rely on affidavits, declarations, and other evidence put forth by the agency. See Hayden v. Nat'l Security Agency Ctr. Secret Serv., 608 F.2d 1381, 1384, 1386 (D.C. Cir. 1979); Church of Scientology v. United States Dep't of Army, 611 F.2d 738, 742 (9th Cir. 1980). Although an agency need not conduct an exhaustive search to comply with FOIA, it must establish that "all files likely to contain responsive materials . . . were searched." Nation Magazine, Washington Bureau v. United States Customs Service, 71 F.3d 885, 890 (D.C. Cir. 1995).
III. ANALYSIS
A. Counts Three Through Nine
The parties agree that the sole federal remedy for challenging the loss of goodtime credits and similar duration-of-confinement claims is by a petition for habeas corpus. See Heck v. Humphrey, 512 U.S. 477 (1994); Preiser v. Rodriguez, 411 U.S. 475 (1973); Rassoli v. Fed. Bureau of Prisons, 230 F.3d 371 (D.C. Cir. 2000); Chatman Bey v. Thornburgh, 864 F.2d 804 (D.C. Cir. 1988); Monk v. Sec'y of the Navy, 793 F.2d 364, 366 (D.C. Cir. 1986); see also Plaintiff's Memorandum of Law in Opposition to Defendant's Motion to Dismiss or Transfer to South Carolina ("Pl.'s Opp.") at 5 (Mr. Barfield "concedes that controlling precedent requires transfer of counts 3 through 9 of the amended complaint to the District of South Carolina because they sound in habeas and are properly brought under 28 U.S.C. § 2241."). Habeas corpus actions are subject to jurisdictional and statutory limitations. See Braden v. 30th Judicial Cir. Ct. of Ky., 410 U.S. 484, 495 (1973). The proper respondent in a habeas corpus action is the petitioner's warden. Rumsfeld v. Padilla, 124 S. Ct. 2711, 2717-18 (2004); Blair-Bey v. Quick, 151 F.3d 1036, 1039 (D.C. Cir. 1998). "[A] district court may not entertain a habeas petition involving present physical custody unless the respondent custodian is within its territorial jurisdiction." Stokes v. U.S. Parole Comm'n, 374 F.3d 1235, 1239 (D.C. Cir. 2004).
The BOP argues that Mr. Barfield did not file counts three through nine as a habeas action and that they should be dismissed without prejudice rather than transferred to the District Court in South Carolina, where his warden is located. The BOP suggests that Mr. Barfield "is capable of deciding whether to re-file this action as a habeas action in the Court having jurisdiction over his custodian." Forrester v. United States Parole Comm'n, 310 F. Supp. 2d 162, 171-172 (D.D.C. 2004).
It is not necessary to impose this administrative burden on Mr. Barfield who is, after all, incarcerated. The more efficient way to address his claims concerning his loss of goodtime credits is to transfer the case to South Carolina. The Court finds that it is in the interest of justice not to dismiss the claims and will therefore transfer counts three through nine to the United States District Court for South Carolina, the district in which Mr. Barfield is currently incarcerated.
B. Count Ten
With regard to count ten, Mr. Barfield alleges that the BOP violates his constitutional rights of access to the courts by limiting him to the BOP grievance form and one continuation page to state his grievances. Am. Compl. ¶ 125, 126:
The Administrative Remedy Program of the BOP, 28 C.F.R. § 542, et seq., is administered in an arbitrary and capricious fashion so as to deprive prisoners of access to the courts and to effective and meaningful administrative remedies. The one continuation-page rule is invoked to limit the ability of a prisoner to set forth facts necessary to an effective and meaningful resolution of grievances and appeals. The BOP does not allow any exceptions to the one continuation-page rule.
Barfield is unable to adequately and effectively utilize the Administrative Remedy Program because the one continuation-page rule limits the facts he can present. This is particularly true in a disciplinary proceeding where the charging document, attached reports, and the DHO report of disciplinary action often comprise several pages.Id. The one-continuation-page rule that Mr. Barfield describes states: "If more space [than provided on the grievance form] is needed, the inmate may use up to one letter-size (8½ by 11") continuation page. The inmate must provide an additional copy of any continuation page. The inmate must submit one copy of supporting exhibits." 28 C.F.R. § 542.14(c)(3)(1993). Inmates are permitted to place only a single complaint, or reasonably related claims, on a single grievance form and its continuation page. Id. The limitation does not apply to any supporting exhibits. The Program obviously has no impact whatsoever on the number of pages an inmate might file in a court proceeding.
The Prison Litigation Reform Act of 1995 ("PLRA"), 110 Stat. 1321-73, as amended, 42 U.S.C. § 1997e(a), provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." This provision applies broadly to any event or action that affects "prison conditions." Porter v. Nussle, 534 U.S. 516, 524 (2002); see also id. at 532 ("[W]e hold that the PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong."). The BOP's Administrative Remedy Program provides for formal review of complaints that relate to any aspect of an inmate's confinement. "To exhaust that process, an inmate must file a request for an administrative remedy with the institution (BP-9) within 20 days of the incident prompting the request. If unsuccessful, the inmate may then appeal to the Regional Director (BP-10), and then to the General Counsel (BP-11). Only after a decision has been rendered at each level can an inmate satisfy the exhaustion requirement." Phillips v. Carrasquillo, 268 F. Supp. 2d 127, 129 (D. Conn. 2002); see also Colton v. Ashcroft, 299 F. Supp. 2d 681, 689 (E.D. Ky. 2004); Prows v. United States, 1990 WL 116840, at *1 (D.D.C. July 31, 1990). With his Sur-Reply, Mr. Barfield has attached his appeal to the General Counsel, which complained, inter alia, about the single-page-continuation rule, and an affidavit in which he states that his appeal was denied by the General Counsel in March 2004. Thus, he appears to have exhausted the administrative process and the Court can turn to the merits of his complaint.
The PLRA was intended "to reduce the quantity and improve the quality of prisoner suits; to this purpose, Congress afforded corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case." Porter, 534 U.S. at 524-525. An administrative review process might correct a situation and obviate the need for litigation, filter out frivolous claims, and focus the controversy if litigation ensues. Id.; see also id. at 528 ("[T]he PLRA's dominant concern [was] to promote administrative redress, filter out groundless claims, and foster better prepared litigation of claims aired in court."). Exhaustion of administrative remedies by both State and Federal prisoners is required before instituting suit. "All `available' [administrative] remedies must now be exhausted; those remedies need not meet federal standards, nor must they be `plain, speedy, and effective.'" Id. at 524 (citations omitted).
Nothing in Porter v. Nussle (or any other case addressing the BOP Program) intimates in any way that an inmate has a constitutional right to an internal administrative process to address his grievances. The purposes of that administrative process are to correct, simplify and streamline. The BOP's one-page-continuation rule is fully consistent with these purposes. Inasmuch as an inmate on appeal to the federal courts is not limited to the statements he made on the grievance form, but only must exhaust the complaint process concerning the subject matter of his grievance prior to suit, the Court finds no intrusion into Mr. Barfield's right of access to the courts because of the rule at 28 C.F.R. § 542.14(c)(3).
This conclusion is buttressed by Mr. Barfield's own arguments. As a constitutional claim, count ten is frivolous but it is only a means to an end. Mr. Barfield attacks the Administrative Remedy Program because his appeals have not been successful and he thinks that he needs more space to explain himself better and argue his position more thoroughly. A requirement that an inmate be succinct does not raise concerns of constitutionality. Indeed, the courts impose the very same requirements on litigants all the time.
Accordingly, count ten will be dismissed.
C. Counts One and Two
We can now turn to the original heart of the case, Mr. Barfield's FOIA complaint. Through the process of briefing, the nature of the alleged harm has been clarified. Mr. Barfield does not attack the exemptions asserted by the BOP to withhold certain records, in whole or in part, and those points are deemed conceded. See, e.g., Stephenson v. Cox, 223 F. Supp. 2d 119, 121 (D.D.C. 2002). Rather, Mr. Barfield challenges the scope of the search conducted by the BOP and the adequacy of the affidavits it has submitted. What he wants is a copy of the handwritten note written by DOH Slater that he believes was attached to the incident report, and all related e-mails.
The burden on the BOP is to establish that it has conducted a search "reasonably calculated to uncover all responsive documents." See Weisberg, 745 F.2d at 1485; see Wilbur, 355 F.3d at 678. "When a request does not specify the locations in which an agency should search, the agency has discretion to confine its inquiry to a central filing system if additional searches are unlikely to produce any marginal return; in other words, the agency generally need not `search every record system.'" Campbell v. United States Dep't of Justice, 164 F.3d 20, 28 (D.C. Cir. 1998) ( quoting Oglesby v. Dep't of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990)). "The agency is not required to speculate about potential leads" to the location of responsive documents, Kowalczyk v. Dep't of Justice, 73 F.3d 386, 389 (D.C. Cir. 1996), although it is required "to follow through on obvious leads to discover requested documents." Valencia-Lucena v. United States Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999).
Here, the BOP initially "conducted a systematic search for the requested records by reviewing the FOI Exempt Section of [Plaintiff's] Central File." Declaration of BOP Deputy Regional Counsel Craig Simmons ("Simmons Decl.") at ¶ 10. "The Central File system of records is a cumulative record in that it follows an inmate from institution to institution, and is maintained at all times at the institution where the inmate is confined." Id. When Mr. Barfield appealed the adequacy of this search to the OIP, he understandably got a response that the search would be broadened. Having requested copies of e-mails and a handwritten note, it is no surprise that these records, if they exist at all, would not be found in his Central File. The BOP, however, did not conduct a further search until Mr. Barfield pointed out its error in his opposition.
Mr. Barfield argues that the Simmons Declaration is inadequate because it does not identify the agency employee who conducted the initial FOIA search or indicate any search for email. Those maladies have been remedied by the declaration of Roy Lathrop ("Lathrop Decl."), who attests that he conducted a second search of Mr. Barfield's Central File and also asked for copies, if any, of e-mails that the Regional Discipline Hearing Administrator or the FCI Edgefield DHO might have concerning Mr. Barfield. No e-mails were located and neither party could remember generating or receiving such e-mails. Lathrop Decl. ¶ 2-3. Mr. Barfield asks the Court to strike the Declaration because Mr. Lathrop stated therein "I declare under penalty of perjury that the matters set forth in this Declaration are true and correct to the best of my knowledge." Lathrop Decl. [Conclusion] (emphasis added). Mr. Barfield argues that this language violates both 28 U.S.C. § 1746 and LCvR 5.1(h). He cites Jackson v. Culinary Sch. of Wash., 811 F. Supp. 714, 723 (D.D.C. 1993) ("A `belief, no matter how sincere, is not equivalent to knowledge' for the purpose of surviving a motion for summary judgment.") ( quoting Jameson v. Jameson, 178 F.2d 58, 60 (D.C. Cir. 1969)), and urges the Court to follow the example of Cobell v. Norton, 310 F. Supp. 2d 77, 84-85 (D.D.C. 2004), where the court refused to consider noncompliant declarations.
The Court will not elevate form over function and declines the invitation to do so. Mr. Lathrop's declaration is "in substantially" the form required by 28 U.S.C. § 1746 and the Local Rule. It was sworn "under penalty of perjury" and reported on actions taken by Mr. Lathrop himself. The phrase on which Mr. Barfield builds his case — "to the best of my knowledge" — is merely surplusage without meaning under these circumstances. Therefore, Plaintiff's motion to strike will be denied.
The issue here is not whether there might possibly exist other records that are responsive to Mr. Barfield's request, but whether the searches conducted by the BOP were, collectively, reasonable. Oglesby, 920 F.2d at 68; Weisberg, 745 F.2d at 1485. Mr. Barfield particularly seeks copies of e-mails and a handwritten note signed by DOH Slater. Mr. Lathrop's Declaration states that BOP searched Mr. Barfield's Central File a second time and also searched the Regional Hearing Administrator's records and the DHO's records. The Court concludes that, as expanded, this search was reasonable and directed to the locations where such records might reasonably be expected to be located if they exist or ever existed. As noted by the D.C. Circuit in Wilbur, an "agency's failure to turn up a particular document, or mere speculation that as yet uncovered documents might exist does not undermine the determination that the agency conducted an adequate search for the requested records." 355 F.3d at 678 (citations omitted).
In a FOIA action, the courts have jurisdiction over claims that an agency has improperly withheld agency records. 5 U.S.C. § 552(a)(4)(B). "[O]nce the records are produced the substance of the controversy disappears and becomes moot, since disclosure which the suit seeks has already been made." Trueblood v. United States Dep't of the Treasury, 943 F. Supp. 64, 67 (D.D.C. 1996) (citation omitted). The BOP cannot produce what it does not have. Counts one and two will be dismissed because they are moot and because the BOP is entitled to summary judgment on the scope of its search for records.